1928-02-13 — Page 4

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THE HONG KONG DAILY PRESS MONDAY, FEBRUARY 13th, 1928.

DEATH DUTIES ON THE BELL-IRVING

ESTATE.

ADMINISTRATOR'S APPEAL DISMISSED...

LEVY TO BE MADE IN RESPECT OF BOTH DEATHS,

At the Supreme Court on Saturday morning, His Lordship the Chief Justice (Sir Henry Gollan) delivered judgment in the recent appeal made by the administrator of the will of the late Mr. John Bell-Irving, against a decision of the Hong Kong Estate Duty Commission with regard to the amount of duty to be paid follow- ing the death of Mrs. Bell-Irving, a member of the Jardine family whose husband had shortly predeceased her.

Mr. F. C. Jenkin appeared for the appellant, and Mr. Eldon Potter. K.C., instructed by Mr. H. K. Holmes (Crown Solicitor), was for respondents.

The appeal was dismissed the judge holding that the Hong Kong and Shanghai property must pay on the money left to the wife as well as the Testator's Home property.

PROFITABLE HONG KONG TRAMWAYS.

LAST YEAR'S PROFIT NEAR A MILLION DOLLARS.

DIRECTORS REPORT,

The directors of the Hong Kong' Tramways, Limited report that the accounts for the year ended 31st December, 1027, show that the profit for the year amounts to 8082,837, 79; brought forward from last balance sheet ras 8243,011.04; making a balance in hand of 81,230,548.69.

An interim dividend of 60 cents per share paid 3rd August, 1927 amounted to $390,000; written off goodwill and ednatruction expenses in the item trway undertaking was $68.000; the final dividend for the year 1927 of 80 cents per share, recommended by the

directors amounts to 8320.000; these three items come to 8978,000; leaving to be carried forward 932,818.82.

Delivering his judgment, His made payable to the deceased under Lordship said: This is an appeal the Will of December 24th, 1821, by the administrator.of the estate (hereafter referred to as "the an- of Mrs. Isabella Bell-Irving, de-auity and it is against this claim censed, against a decision of the that this appeal is brought. Commission appointed to carry out The Commissioner has decided, The Rev. Fr. L Robert resigned the provisions of the Estate Duty that, as regards the settled funds, from the board during the year and Ordinance, 1015, which is modelled property has passed on the death of Mr. A. O. Lang also resigned upon on the visions of the Finance Mrą. Bell-Irving which is liable tɔ Act, 1804, though in certain actions estate duty under section 4 of the director, but has since resigned. leaving the Colony from which time Mr. L. J. Davies served as a of the Ordinance there are depar- Ordinance, but it is argued on be Mr. C. G. S. Mackie has filled the tures from the phraseology of the half of the appellent that no pro cavancy and now offers himself for Act.

perty has passed, that a cessor of

election. an interest has arisen under section 15 (1) (b) of the Ordinance, that the value of such interest must be calculated under section 13 (3) and that as the last named provision cannot be used for the purpose, this is a enana omising and there is con- sequently no liability to pay duty.

The facts are not disputed and will proceed to state them shortly:

By a settlement dated September 20th, 1884, John Bell-Irving, in view of a marriage contemplated and shortly to be solemnised between himself and deceased, then Isabella Thornton, conveyed certain shares and moneys to Trustees upon trust to pay the income arising therefrom to John Beil-Irving during his life, and, after his death to the deceased: during her life, should she survive him; and, after the death of the adrvivor, and subject to a power of appointment, which in fact was not exercised, in trust to divide the fund amongst the children of the marriage in equal shares. The cur riage took place, and there are sur viving issue of the marriage.

whether this case does or does not I will first deal with question of fall under as of the Ordinance.

G. Bernard and Mr. A. H. Compton and the Auditors, ezers. The retiring directors are Mr. D.

Lowe, Bingham and Matthews, offer themselves for re-election...

general meeting will be held at the offices of Messrs. Jardine, Mathe The company's ordinary yearly

February 27th, at noon. son & Co, Ltd, on Monday,

+

REAL REVUE TO-NIGHT.

AT THE THEATRE ROYAL

The corresponding section of the Finance Act, 1804 (s.1) directs that estate duty is to bo levied on all property real or personal, settled or not settled" passing at death. The words "real or personal, settled or not settled" do not appear in Company are giving the "Black Tac Banvard Musical Comedy ..4 of the Ordinance, but in my Bottom Revue opinion this omission does not affect

at the Theatre By a Trast Disposition and Settle definition of property in s 3 (1) (f) pence has been given to the pre- the meaning as it is covered by the Royal to-night. Much time and ex- ment or Last Will and Settlement of the Ordinance, which is in much dastion with the object of present- (hereafter referred to 45 "the Will") dated December 24th, 1021, corresponding definition in (1) American and French modelsin

more comprehensive terms than the patrons with a John Bell-Irving appointed two) of the Finance Act. 1894. It fact the three elements are very real Revue based upon bodics of Trustees, respectively follows, therefore, that decisions of

the beat English. denominated "Foreign Trustees and." Ceneral Trustees."

Test Case Cited.

Very Rose

the English Courts on 1 of the appily combined. The music is He devised to his Foreign Trustees point when considering the true

Finance Act, 1894, are directly in humour essentially British, and the almost entirely American, the all his property, of whatever kind, construction of 4 of the Ordin delightful incidents will be the situated in Hong Kong and Shang-ance.

costumes decidedly French. hai, upon trust, with all convenient speed after such property shall have

Totem Pole Dance from come or any part thereof shall from It was urged on behalf of the with the fine Mistinguette" cos Marie," the "Black Bottom Dance" time to time have come into their appellant that on Mrs. Bell-Irving's tumea), the poignant little sketch hands, to transfer or pay the same death no property passed from her." The Past Master" and "Drums or the free proceeds thereof to the to anybody and therefore s. 4 of the Feet." John Hagan and Frank General Trustees. A power of sale Ordinance did not apply; and that Atkinson have ample opportunity was given to the Foreign Trustees what really happened was & cessor but no directions were contained in of interest which brought the case magination," "Why are you sad?" to be funny io A Stretch of the Will as to any payment of the within s. 5 (1) (b) of the Ordinance." Whe's Robinson," and many other- Testator's debts by the Foreign As is pointed out by Mr. Justice comedy sketches, while the singing. Trustees; and their sole duty under Russell in "In re Casse!" 43 Times and dancing abilities of the prin the Will was to collect the Testator's Law Reports at page 742, it would cipal ladies, Miss Dallé, Miss Leslie, estate, to transfer or pay it to the at first sight appear that where a Miss Luncaster and Miss D'Arcy General Trustees, and to render life interest in "A" ceased by are given ample scope as also is accounts of their dealings with it "A's" death, with the result that the fine baritone voice of William to the latter. There was a further an interest in B." which during Senior. T provision that, failing the Foreign"A's" life was reversionary, be- rue

Black Bottom Re- Trustees named in the Will or cane an interest in possession, ho in

proved the most popular item nominated under the powers reser property passed on "A's" death; India and there appears to be every the Company's repertoire in ved to the Testator therein, the "A" interest merely rensed, no General Trustees might appoint part of it is transferred to "B," will endorse that opinion,

reason to expect that Hong Kong persons to take the property sitant or passes to "B"; and consequent ed in Hong Kong and in Shanghai 1g such a case should fall within and deal with it as directed by the s. 2 (1) (b) of the Finance Act. WIL

1804 (corresponding to a. 5 (1) (b) To the General Trustees the of the Ordinance) and should only Testator devised all property become within the charging section, longing to him at the time of his 8.1 of the Act (corresponding to s.. 4 death, except that devised to his of the Ordinance) by virtue of s. 2 Foreign Trustees but including such (1) (b) of the Act. But Mr. Justice part thereof as the General Trustees Russell decided that he was con- strained to hold, on the authority of

might receive from the mornig

Trustees under circumstances already mentioned.

argued on behalf of the appellant that, under s. 8 (3) of the Ordin- As regards the annuity, it is ance, estate duty is not payable in respect of its cesser because it was charged wholly on property situate outside the Colony,

the House of Lords in Cowley visions of the Will under, which the

the Commissioners of Inland Re- venue (1899) A.C. 198, that in the perty passed on the death of "A circumstances above set forth, pro- and that s. 1 and not s. 2 of the Finance Act applied.

The General Trustees were direct ed to pay, out of the funds coming to their hands, the Testator's debts except those affecting his real pro- perty in Scotland, and numerous legacies left by the Will: and in Mr. Jenkin, counsel for the an-pointed separate executors to dea! particular to make payment out of

I have set out the relevant pro- annuity arose, and it appears to me to be abundantly clear that the single fund out of which debts, Testator intended to create a legacies and the annuity were to be paid. It is true that he ap with the Hong Kong and Shanghai Property, but their duties are much more like those which would under a Power of Attorney, and it ordinarily be performed by agente appears to me that they were creat ed merely for purposes of con- venience. They are directed to transfer or pay over to the General Trustees, as soon as possible, all the

tion of the General Estate of which hai and the distribution and applica- property in Hong Kong and Shang-

pellant, could not. distinguish the his general estate to Mrs. Bell circumstances in this case "from Irving, in the event of her surviving those to which Mr. Justice Russell him, of a free yearly annuity of reformed in "In re Gusse)" (apra) 23,000 sterling. The Will goes on and I must hold that the circum- to provide that in the event of his stances are, in fact, indistinguish general estate being insufficient to able, that property passed on the meet the whole of the provisions death of Mrs. Hell-Irving and payable thereout in the terms of therefore that duty is payable under these presents then the provisions s. 4 of the Ordinance. in favour of my said wife shall be paid or set aside preferably, and Jenkin that the case fell within Even if I had agreed with Mr. the provisions in favour of my child-s. 5 (1)(b) of the Ordinance, all property received from the For ren out of the said general Estate could not have held that, inasmuch eign Trustees is to form part, in shall all suffer a proportionate as duty could not bave been cal solely in the hands of the General- abatement."

culated under a. 13 (6) of the Ordin- Trustees.. Duties Claimed On Wife's Annuity. ance, no duty was payable. Estate The duty of the Foreign Trustees.

John Bell-Irving died on July ther the interest liable to duty falls

duty in chargeable under . 4, wheto render accounts to the General 30th, 1925, without having revoked within a 4 or 6. 5 of the Ordinance. Trustees, and the power of the or altered his Will; and estate duty At most 8. 13 (5) of the Ordinance latter in the event of there being has been paid incally on his Hoag mere supplies machinery which; it failure in the Foreign Trustees, Kong Estate Mrs. Hell-Irving died is true, is only applicable to cases to appoint others in their places are on August 10th, 1925, and it is ad-like the cesser of an annuity: but also material to the consideration of mitted that up to the time of her I can see no reason for holding the intention of the Tentator to give death none of the Estate devised to that an interest in property, which the General Trusters possession and the Forsign Trustees had been is not of the nature of an annuity,

control over the whole of the pro- transferred or paid by them to the cannot be dealt with for the purposes ports, other than his heritable General Trustees under the provi- of assessment off duty ander s. 1.4 estate in Beotland, of which he was sions to that effect contained in the and 9 (4) of the Ordinance. Therd possessed at the time of his death. WIL

The Commission under the Estate which in my opinion, constrains me Hong Kong and Shanghai property is certainly nothing in s. 13 (5) In my opinion, therefore, the Duty Ordinance. 1915, has called to hold that unless the estate duty is charged with payment of the for payment of Estate Duty in res can be assessed under Schedule annuity as well na the property of pect of (a) the funds settled under III., and interest falling ander, s. 5 the Testator situated in the United the Settlement of Beptember 28th, (1) (b) of the Ordinance is not Kingdom, 1894, (hereafter referred to as the liable to duty settled funds'); and (b) the annizity

(Continued on next Column.).

This appent must be dismissed with "costs."

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